Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: December 22, 2021
CASE NO(S).: PL200617
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: David Ysselstein
Subject: Application to amend Zoning By-law (No# 07-2003-Z) - Refusal of Application by Township of Norwich
Existing Zoning: Special Limited Agricultural Zone (A1-11)
Proposed Zoning: Amended Special Limited Agricultural Zone (A1-11)
Purpose: To permit the construction of one new veal barn on subject lands and to increase the number of veal permitted as part of the existing livestock operation
Property Address/Description: 465065 Curries Road
Municipality: Township of Norwich
Municipality File No.: ZN3-20-14
OLT Case No.: PL200617
OLT File No.: PL200617
OLT Case Name: Ysselstein v. Norwich (Township)
PROCEEDING COMMENCED UNDER section 20 of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6
Request by: David Ysselstein
Request for: Request for an Order Awarding Costs
Costs sought against: Township of Norwich
Heard: By Written Submissions
APPEARANCES:
| Parties | Counsel |
|---|---|
| David Ysselstein (“Applicant”) | R. Scriven |
| Township of Norwich (“Township”) | A. Ciccone |
DECISION DELIVERED BY BLAIR S. TAYLOR AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The matter before the Tribunal is a request for costs arising out of this Member’s Decision dated September 3, 2021 allowing the Applicant’s appeal and directing the Township to amend its Zoning By-law for the property known municipally as 465065 Curries Road and to allow for 233.3 nutrient units.
DECISION
2For the reasons set out below, the Tribunal finds that the Township acted in an unreasonable fashion and the Tribunal hereby awards costs to the Applicant in the amount of $6,000.00 all inclusive.
STATUTORY REGIME
3The Ontario Land Tribunal Act (“OLTA”) provides the statutory basis for a request for costs.
4Section 20 provides:
The Tribunal may, subject to any other Act, fix the costs of and incidental to any proceeding, and order a party to the proceeding to pay the costs, in accordance with the rules.
5Ontario Land Tribunal’s Rules of Practice and Procedure (“Rules”) deal with costs in Rule 23 and generally provide a procedure and timing for such requests, (which themselves are not at issue in this request).
6Rule 23.9 is entitled “Circumstances in Which Costs Order May be Made” and provides guidance for the consideration of a costs request:
The Tribunal may only order costs against a party if the conduct or course of conduct of a party has been unreasonable, frivolous or vexatious or if the party has acted in bad faith. Clearly unreasonable, frivolous, vexatious and bad faith conduct can include, but is not limited to:
a. failing to attend a hearing event or failing to send a representative when properly given notice, without contacting the Tribunal;
b. failing to give notice without adequate explanation, lack of co-operation with other parties, during the proceedings, changing a position without notice to the parties, or introducing an issue or evidence not previously mentioned or included in a procedural order;
c. failing to act in a timely manner or failing to comply with a procedural order or direction of the Tribunal where the result is undue prejudice or delay;
d. a course of conduct necessitating unnecessary adjournments or delays or failing to prepare adequately for hearing events;
e. failing to present evidence, continuing to deal with issues, asking questions or taking steps that the Tribunal has determined to be improper;
f. failing to make reasonable efforts to combine submissions with parties of similar interest;
g. acting disrespectfully or maligning the character of another party;
h. knowingly presenting false or misleading evidence; or
i. breaching a confidentiality requirement of mediation, settlement conference or of a decision of the Tribunal in a hearing on the merits.
The Tribunal is not bound to order costs when any of these examples occur as the Tribunal will consider the seriousness of the conduct.
7Rules 23.10 states:
The Tribunal may deny or grant the application for costs or award a different amount and fix the costs of and incidental to the proceeding and direct payment be made by a certain date by order.
8Finally Rule 23.11 states:
Awards of costs may bear interest in the same manner as those made under section 129 of the Courts of Justice Act, R.S.O.1990, c. C.43.
The Planning Act
9As this request for costs arises out of a Planning Act (“PA”) decision, relevant provisions of the PA include s. 1.1 Purposes:
The purposes of this Act are,
(a) to promote sustainable economic development in a healthy natural environment within the policy and by the means provided by this Act;
(b) to provide for a land use planning system led by provincial policy;
(c) to integrate matters of provincial interest in provincial and municipal planning decisions
(d) to provide for planning processes that are fair by making them open, accessible, timely and efficient;
(e) to encourage co-operation and coordination among various interests;
(f) to recognize the decision-making authority and accountability of municipal councils in planning.
10Section 2 of the PA sets out a number of Provincial Interests for which a municipal council and the Tribunal must have regard for in carrying out their responsibilities under the PA and those interests include: (a) the protection of ecological systems, (b) the protection of agricultural resources; (m) the co-ordination of planning activities of public bodies; and (p) the appropriate location of growth and development.
11Section 2.1(1) mandates that the Tribunal shall, when making a decision under the PA, have regard for any decision that was made by a municipal council and the information and materials considered in making its decision.
12Section 3(5) of the PA requires that a decision of a municipal council (and this Tribunal) shall be consistent with the Provincial Policy Statement in effect on the date of the decision.
JURISPRUDENCE
13The jurisprudence of the Tribunal and its predecessors (the Ontario Municipal Board and the Local Planning Appeal Tribunal) have carefully distinguished this administrative Tribunal’s practice of awarding costs from that of the civil courts. Here, awards of costs are not routine, and a successful party should have no expectation that it will recover its costs (see: Kimvar Enterprises Inc. v. Innisfil (Town), [2009] O.M.B.D. No. 33).
14This notwithstanding, the Tribunal has also acknowledged that parties must be accountable for their conduct and that if that course of conduct has been unreasonable, frivolous, or vexatious, or if the party has acted in bad faith, then the Tribunal may award costs.
15The test for assessing that conduct has been the “reasonable person” test: i.e. would a reasonable person looking at all of the circumstances, conclude that the conduct was not right, that the conduct was not fair, and that the person ought to be obligated to another in some way for that kind of conduct (see: Midland (Town) Zoning By-law 94-50, 32 O.M.B.R. 4 (“Midland”)).
16The Midland case also very aptly summarized the meaning of frivolous, vexatious, and unreasonable:
The different facets of a party’s participation are reflected in the …use of the terms “frivolous”, “vexatious”, and “clearly unreasonable”. Contrary to popular assumption, these are not synonyms, but are meant to reflect different types of inappropriate conduct…
“Frivolous means “characterized by lack of seriousness”…“Vexatious”, particularly in legal parlance, describes action “instituted without sufficient grounds for the purpose of causing trouble or annoyance to another party…“Unreasonable” means “irrational” or not in accordance with commons sense…
Thus, in the colloquial, we have the “silly”, the “nasty”, and the “foolish”. And it appears to this Member that to be either “silly” or “nasty” in this context requires some deliberateness of purpose; one is trying not to be serious or is trying to be bad. And while there is no doubt that one can intend to be unreasonable, one can also be unreasonable without making any effort at all.
17The question arises whether costs have been awarded against municipalities? The answer is yes; municipalities are not exempt from costs awards. There have been cases where the Tribunal or its predecessors have found the actions of a municipality to be an attempt to thwart an applicant’s site specific planning applications (see: SmartCentres Inc. (Toronto Film Studios Inc.) v. Toronto (City), 85 M.P.L.R. (4th) 330), and where a municipality has on numerous occasions and without notice, changed its position on an on-going matter, introduced new issues and caused extensive delay (see: Blue Mountains (Town) v. Canadian Development Management Corp., 33 M.P.L.R. (3d) 10). Other cases have involved the award of costs where a municipality acted in a clearly irresponsible manner (see: Trilea Centres Inc. v. Ottawa-Carleton (Regional Municipality), 31 O.M.B.R. 10 (“Trilea”) and Holy Cross Greek Orthodox Church v. Scarborough (City) [1991] O.M.B.D. No. 1839 (“Holy Cross”)).
18In cases where costs are awarded, the next issue to be decided is at what scale ought the costs to be awarded?
19In cases where the conduct was unreasonable, the Tribunal looks to an award of costs on a partial indemnity basis. Where the conduct went beyond unreasonable, and became (in the court’s terminology) reprehensible, scandalous, or outrageous, then the Tribunal may award costs at either a higher substantial or full indemnity basis (see: Wal-Mart Canada Corp. v. Peterborough (City), [2004] O.M.B.D. No. 1234).
THE CLAIM
20Counsel for the Applicant seeks partial indemnity (at 60%) of his client’s total costs, i.e. $11,922.43.
21The costs request, it is submitted, is on the basis that the actions of the Town were frivolous and vexatious based on McArthur v. Neumann 2020 ONSC 66: a finding that frivolous and vexatious was equivalent to a matter which is recognizably devoid of merit and having little prospect of success.
22The request notes that the Applicant is a young farmer, who was forced to bring the appeal in order to build a barn for the financial stability and prosperity of his modest farming operation.
23The cost request provides that the circulation conducted by the County of Oxford (“County”) planner to the Ontario Ministry of Agriculture, Food and Rural Affairs (“OMAFRA”), the Ministry of the Environment, Conservation and Parks (“MECP”) and the Conservation Authority all raised no objections or concerns, that the County Planning report generally recommended the application, and that there was no genuine issue in dispute. Notwithstanding this the Township retained an outside expert and external counsel to resist the application.
24Counsel submits that the entire hearing was unnecessary as well as frivolous and/or vexatious. Counsel points out that the collapse of the Township’s case underlines how unreasonable the Township’s position was. Further, counsel argues that with regard to the Township’s alleged “future concerns”, the Township produced no traffic studies, no environmental concerns, and no witnesses in support of that concern, or any other evidence.
25Counsel also stressed the fact that the original decision of the Township Council to deny the application was that the Applicant had “promised” no further buildings would be constructed. Yet that rationale was neither supported by any Township evidence nor even explored by the Township in the hearing, even though the Applicant himself gave viva voce evidence before the Tribunal and was cross-examined by counsel for the Township.
TOWNSHIP RESPONSE
26Counsel for the Township submits that the Tribunal should deny the request for costs as the Township did not act unreasonably, frivolously, vexatiously, or in bad faith.
27He notes that the County planner’s report identified that there appeared to be a non-conforming issue of manure storage structure, and recommended: “…that the Council of the Township of Norwich defer the zone change application… until such time as the existing non-compliant manure storage situation is resolved.” (emphasis added)
28Counsel for the Township argues that the Township Council acted reasonably by retaining outside counsel and retaining an outside consultant who opined in his witness statement that there was an issue with the on-site catch basin, that it would not be good planning to approve the rezoning with a situation of non-compliance.
29Counsel for the Township submits that the Township’s expert had signed the Tribunal’s Acknowledgment of Expert’s Duty form and that it was to his credit that with new evidence presented in the hearing, he recanted his position on a number of matters.
30Counsel directed his submissions to Rule 23.9 (b) (changing a position without notice) and submits that the Township did not change its position: the Township consistently maintained its refusal and argued at the hearing that the Tribunal should as well.
31With regard to Rule 23.9 (e) (failed to present evidence), counsel submits that the Township did present evidence through its expert witness. While the Tribunal preferred the evidence of the County planner over the Township’s witness, evidence was presented.
32In conclusion, counsel for the Township submits that the Township Council refused the application, and on appeal retained an expert to provide independent advice. On the basis of that advice, the Township attended the contested hearing to uphold the decision of Council. Thus, the conduct of the Township was reasonable and costs should be dismissed.
COMMENTARY AND ANALYSIS
33Is an award of costs against the Township appropriate in this matter?
34The jurisprudence indicates that municipalities are not exempt from orders of costs, and awards have been made where municipalities were found to have acted in a clearly irresponsible manner (see: Trilea, supra).
35In Holy Cross, the Ontario Municipal Board stated:
Council is obviously not obligated to rubber-stamp the planning staff recommendations, but they must act in a reasonable and responsible way, particularly when their actions take away property rights of an owner. They should be able to, and in fact, should justify their actions on any appeal to this Board. (Emphasis added)
36In this case for the reasons set out below, the Tribunal is satisfied that the Township’s course of conduct was unreasonable and that an award of costs is appropriate.
37The matter before the Tribunal came pursuant to a PA application. It is noted that one of the purposes of the PA is to provide for a land use planning system that is led by provincial policy and another purpose is to recognize the decision-making authority and accountability of municipal councils in land use planning.
38The Tribunal observes that the rezoning application before the Township Council was to increase the nutrient units to 233.3 based on an approval from OMAFRA pursuant to the Nutrient Management Act (circa) 2002, whereas the Township Zoning By-law provisions (which actually predate the Nutrient Management Act) would only allow 1 nutrient unit per acre.
39The agency and departmental circulation conducted by the County planner revealed no objections from OMAFRA, MECP, and the Conservation Authority. It did however, reveal a Township “concern” that there was manure storage on a transfer pad and thus the County planner’s report, while otherwise favouring approval, recommended deferral until the non-compliance issue was resolved.
40Notwithstanding this recommendation for deferral (and likely further investigation), Township Council refused the application on the basis that: “The Applicant had promised no further buildings would be constructed.”
41For hearings of five days or more, it is customary for the Tribunal to hold a Case Management Conference through which a Procedural Order and Issues List would be set to ensure a fair and transparent hearing process. In this appeal, the matter was simply set down for a short hearing and it concluded in one day.
42With the expectation that the Township would advance its stated rationale for denying the application (i.e. the alleged promise), counsel for the Applicant summoned to the hearing, the Council Member who moved the Township motion. Counsel for the Township objected to the summons on the basis that Township Council “speaks” by by-law or resolution and not by any individual member of Council, which objection was sustained by the Tribunal, and the summons quashed.
43At the Tribunal hearing, the summoned County planner gave her expert evidence in support of the rezoning. Additionally, the Applicant gave viva voce evidence. He testified that the alleged non-compliance of manure storage was actually sawdust (not manure) on the transfer pad, and that the “structure” on the transfer pad was two (2) cinder blocks, which he removed as soon as he was aware of the Township’s concern.
44While the Township Council decision was grounded on the alleged promise, no evidence whatsoever was tendered by the Township to that effect and neither was the Applicant even cross-examined on this issue. Thus, the Township having raised the character of the Applicant on the public record, tacitly abandoned its publicly declared rationale for the refusal of the rezoning request.
45While it may be said that the Township Council had not changed its ultimate position (i.e. opposition to the application), Township Council did, at the hearing, however, totally abandon its rationale for the refusal.
46There at the hearing, the Township opposition segued from the Council-adopted position (the alleged promise), to the alleged non-compliance: i.e. the removal of tile drainage, the failure of the Nutrient Management Plan to discuss a catch basin, etc. (all of which were found either resolved or in error), and all of which could likely have been resolved through pre-hearing communication and a thorough reading of the Nutrient Management Plan.
47The Tribunal is mandated in s. 2.1 of the PA to have regard for the decision of a municipality and the information and materials before it at the time it made its decision when considering an appeal on its merits.
48The Tribunal did that at the hearing. What the Tribunal’s decision found was that what Township Council’s resolution had decided, and what evidence was put forward at the Tribunal hearing, bore no relationship to each other.
49As stated in Holy Cross, Township Council is not obligated to rubber-stamp a planning recommendation, but it is obligated to act in a reasonable and responsible fashion and should justify its actions to the Tribunal, which it fundamentally failed to do in the hearing before the Tribunal.
50Using the above referenced Tribunal test, to the reasonable person, were the actions of the municipality in this case not fair, not right or appropriate, and ought the Township to be obligated in some way for that form of conduct?
51The Tribunal finds that while the Township did not act in a frivolous manner, nor did it act in a vexatious manner, it did act in an unreasonable manner and costs will be awarded. There was a complete change of the fundamental rationale for the Township decision, resulting in actions contrary to Rules 23.9 (b) and 23.9 (e).
52In terms of the scale of the award, the Tribunal finds that this is not a case for full indemnity of costs but rather partial indemnity. Also, the Tribunal acknowledges that the Township’s expert witness did fulfill his duty to the Tribunal when presented with new evidence that calmed a number of his concerns, and ultimately led to the oral decision to allow the appeal.
53Accordingly, the Tribunal will exercise its discretion and pursuant to Rule 23.10, will fix the costs at $6,000.00 on an all inclusive basis (including this request) to be paid within 120 days from the issuance date of this Decision.
54Post judgment interest shall be payable on the costs ordered from the date of payment is due, in accordance with s. 129 of the Courts of Justice Act R.S.O. 1990 c. C.43, as amended.
55This is the Order of the Tribunal.
“Blair S. Taylor”
BLAIR S. TAYLOR
MEMBER
Ontario Land Tribunal
Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.